After Hobby Lobby

The Supreme Court term wrapped up nice and neat last week. Unless you are a woman.

For the first time in my memory as a reporter, there was a men’s term and a women’s term at the U.S. Supreme Court. The men’s term ended last Monday, with a pair of split decisions in Burwell v.Hobby Lobby and Harris v. Quinn, and a lot of mumbling on both sides of the political spectrum about the fact that—as Supreme Court terms go—this was a fairly uncontroversial one, marked by high degrees of agreement and consensus-seeking by the justices, and minimalist, incremental changes where there might have been tectonic shifts.

To be sure, there are certainly a great many men who have evinced shock and horror at the way the term shook out for women’s reproductive and economic freedoms, and a good many women who are delighted at the way things turned out. But it seems notable to me, and rather unprecedented, that a Supreme Court term that more or less ended for men’s issues (to wit, all constitutional issues that don’t implicate gender) last week still rages on for women in the press, in the political discourse, and in the legislatures.

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It almost doesn’t warrant explaining yet again why the term was such a disaster for women’s rights and freedoms. One need look no further than the trifecta of the abortion buffer-zone case, McCullen v. Coakley; Burwell v. Hobby Lobby; and Harris v. Quinn, which determined that for purposes of the “agency fees” rule, home health care workers—90 percent of whom are women and minorities—are not really public employees, because the home is not really a workplace. And the fact that the female justices dissented from two of the above cases in the strongest terms is rather remarkable. But looking at the three cases together, it’s difficult not to notice something almost more remarkable: In the majority opinions in all three, there is scant attention paid to real women, their daily lives, or their interests, and great mountainous wads of attention paid elsewhere. It’s almost as if the court chose not to see women this term, or at least not real women, with real challenges, and opted instead to offer extra protections to the delicate women of their imaginary worlds.

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It’s impossible to escape the conclusion that Hobby Lobby, McCullen,and Harris all rest on the idea that women are in effect children.

This fact has been proven empirically already, in a quick and dirty word count conducted by the Washington Post’s Emily Badger in the aftermath of Hobby Lobby. It seems that in the 49-page majority opinion penned by Justice Samuel Alito, the word women or woman appears a mere 13 times (excluding footnotes and URLs), whereas in the 35-page dissent by Justice Ruth Bader Ginsburg, the word shows up 43 times. This may seem a rather crude measure of the relative importance of the interests in the two opinions, but it reflects, as Badger observes, Ginsburg’s solicitude not just for the interests of the religious employers in the case, but also for the women who work for them and for the women across the country who need affordable contraception for all sorts of economic and medical reasons the majority chooses never even to address. Indeed, it seems to me that had the Alito opinion actually engaged with the mass of data and factual analysis showing why there is a compelling interest in treating contraception as critically important, the national media conversation around the case might have unfurled in a far less Beavis and Butt-Head manner. It’s hard to elevate the conversation about the case to a plane that rises beyond loose women and the ease of access to drugstore condoms when the court declines to model what such an elevated conversation might look like.

The same is true in Harris v. Quinn, where, as multiple court-watchers have already indicated, the majority opinion by Alito starts from the legal presumption that the (mostly poor and minority women) who care for the sick and elderly at home are simply different creatures from the firemen and teachers who are usually represented by public-sector unions. They are doing, as Robin Marty explains, “women’s work,” and they are doing it in the home. As a result, the court crafts a whole different category—“partial public employees”—to describe their jobs.

And the same is true in McCullen, as I suggested last week, when the case came down. In the court’s view there is something different about these abortion-seeking women, fundamentally fragile and uncertain, that makes the majority of the court especially inclined to accept the argument that they just need more information—helpfully provided by gentle “sidewalk counselors”—before they can fully appreciate the enormity of their decisions to terminate pregnancies. Reading the concurrences in McCullen, one can only imagine what Alito and Justice Antonin Scalia would think of an argument that holds that men entering a gun store to purchase an assault-style weapon would also benefit morally and psychologically from gentle sidewalk counselors warning them that they may be contributing to the end of a life or that they may come to regret their decisions. The implication that women need counseling and men need to be left alone to make bold, manly decisions is hard to escape after McCullen.

Which leads us back to Hobby Lobby, a case that rests tenuously on the premise that an employer’s choice to offer a menu of comprehensive health care services to all employees is the same as his choice to buy a condom for his secretary. What is missing from the Hobby Lobby decision altogether—beyond the economic disparity and public health arguments I mention above—is the very notion of the woman herself as moral circuit breaker, as an agent of her own ethical choices and preferences, whose decision to obtain an IUD, or a condom, or a morning-after pill is a fully autonomous moral choice that supplants the spiritual choices of her employer. Again, it’s almost impossible to escape the conclusion that Hobby Lobby, McCullen,and Harris all rest on the idea that women are in effect children with (partial) paychecks, and that their choices are to be second-guessed and gently redirected.

All this would be difficult enough, were it not for the fact that the five-justice majority at the court seems determined to offer all this help and chivalry in the face of the strenuous objections of their female colleagues who seem, at the close of this term, to have spent a good deal of energy howling into the wind that women need less delicate handling and more basic freedoms. The final irony is that the quality of “empathy”—the much maligned, squishy solicitude that is so often associated with female justices—is the quality that seemingly drove each of the decisions above. It wasn’t so much a clash of rigorous constitutional values that determined the outcomes in Harris, McCullen, and Hobby Lobby. It was simply a strong identification by the majority justices with the values that were arrayed in opposition to women’s freedoms and economic equality: the poor home-care worker, forced to support the speech of a union; the beleaguered sidewalk counselor denied the opportunity to counsel and persuade; the sympathetic religious employer, forced to pay for something his religion cannot tolerate. Nobody disputes that in each case those values are heartfelt and compelling. But the almost complete erasure of the values on the other side is a constitutional hat trick if ever there was one. It’s bad enough that the term ended so poorly for women. That it happened because of an abundance of empathy—the quality that allegedly makes us women bad judges and justices—is kind of the icing on the cake.